BASHIR AHMAD Versus THE STATE

MUHAMMAD NADIR KHAN, J .‑‑‑Appellant Bashir Ahmed preferred this Jail Appeal feeling dissatisfied by his conviction under section 302/34, P.P.C. whereby he has been sentenced to life imprisonment.

2. Appellant was charged under section 302/34, P.P.C. in pursuance of case registered on 10‑9‑1994 vide F.I.R. No. 49 of 1994 under section 302/34, P.P.C. on the report of Muhammad Waris, S.‑I./S.H.O.. Police Station Sohbatpur, District Nasirabad, who during patrol at about 3‑15 p.m. reached the crossing of Bokhanwa, where Bus No.KL‑937 was parked on the side of road and large number of people were present. A (lead body was lying on the road. Mir Hassan, informed that the dead body was of his father Naseer Khan, who alongwith him after purchase of provisions was returning to their house from Sohbatpur in the Bus in which Bashir Ahmed alias Jalal and his cousin Qadir Bakhsh, were also present. At about 3‑00 p.m. when the Bus reached Bokhanwa, they game down. They were followed by Bashir Ahmed, who demanded the amount of Rs.5,000 received by Naseer Khan, on account of flood relief fund, on which they entered into altercation on which Bashir Ahmed alias Jaal, took out his revolver and fired on his father which resulted in his death, while Bashir Ahmed alias Jalal, escaped.

3. The Marasla to the above effect was sent to police station on which F.I.R. No.49 of 1994, under section 302/34, P.P.C. was registered. Appellant Bashir Ahmed alias Jalal, could not be arrested however, Ghulam Hussain, was arrested against whom interim challan was submitted in the Court of Sessions Judge, Nasirabad at Dera Allah yar. The matter was compromised between the heirs of deceased and accused Ghulam Hussain. The compromise was accepted by Sessions Judge Nasirabad at Dera Allah Yar vide judgment dated 19‑3‑1995, whereby Ghulam Hussain, was acquitted of the charge while accused Bashir Ahmed was declared Proclaimed Offender (P.O.) and the case was kept dormant against him. Accused Bashir Ahmed was subsequently arrested on 22‑2‑2001 whereupon he was sent to the Court of Sessions Judge Jaffarabad at Dera Allah Yar to face trial for Qatl‑e‑Amd of Nasir Khan. Formal charge under section 302/34, P.P.C. was read over to the appellant on 24‑3‑2001 to which he pleaded not guilty whereafter prosecution got examined Eight (8) witnesses:‑‑

P.W.1, Muhammad Waris, is the complainant on whose Marasla Exh.P/1‑A and F.I.R. Exh.P/1‑B was recorded.

P.W.2, Mir Hassan, is the son of deceased Naseer Khan. He is the eye‑witness of the incident.

P.W.3, Shahzadi, widow of deceased received information of the incident on telephone soon after the incident.

P.W.4, Abdul Karim, expressed his lack of knowledge about the incident.

P.W.5, Wajid Ali Khosa is the medical officer who conducted the post‑mortem and issued certificate Exh.P/5‑A.

P.W.6, Nazir Ahmed, Police Constable is witness to the seizure of blood‑stained shirt of deceased.

P.W.7. Mushtaq Ahmed, S.‑I./S.H.O. Sohbatpur, arrested the accused Bashir Ahmed and submitted the challan Exh‑P/1 ‑A.

P.W.8, Jan Muhammad, S.‑I., Police conducted the investigation and the matter remained pending with him on account of absconsion of accused Bashir Ahmed till 22‑2‑2000 whereafter he was transferred and the file was handed over to P.W.7 Mushtaq Ahmed, S.‑I.

4. Prosecution rested its case by producing the above mentioned 8 witnesses, whereafter, accused was examined under section 342, Cr.P.C. Accused neither got recorded his statement on oath nor produced any defence witness.

5. The learned Sessions Judge, Jaffarabad at Dera Allah Yar, vide its judgement dated 23‑11‑2001 found appellant guilty of the offence under section 302(b), P.P.C. and sentenced him to life imprisonment.

6. Mr. Amanullah Kanrani, Advocate counsel for appellant challenging the finding of the trial Court contended that:

(i) Identification of P.W.2 Mir Hassan, regarding his presence at the place of incident at the time of incident.is doubtful.

(ii) Statement of P.W.2 Mir Hassan, contradicts the statement of P.W.3 Mst. Shahzadi.

(iii) Statement of P.W.2 Mir Hassan on account of his doubtful identification without any corroboration is unsaved to be relied upon.

(iv) P. W. Mir Hassan, is interested witness as he is the son of deceased, therefore, sole statement of interested person is not save to be made basis for conviction.

(v) Different motives were introduced but none was provided while the motives were contradictory to each other.

(vi) The case was of no evidence, which calls for acquittal of appellant.

7. On the other hand learned State Counsel Mr. Abdul Rahim Mengal, Advocate controverting the contentions raised by the counsel for appellant submitted that:‑‑

(i) Identification of P.W.2 Mir Hassan, was never questioned, his presence at the place of incident was not disputed. Hence he is a natural witness.

(ii) No motive on the part of P. W.2 Mir Hassan and P. W. Shahzadi, was alleged for false implication of appellant in the commission of offence.

(iii) Appellant remained absconder for about 7 years for which no explanation could be advanced.

(iv) Unexplained absconsion corroborates statement of P.W.2 and P.W.3.

(v) The judgment of trial Court being well reasoned reflects no infirmity and warrant no interference.

8. We have given due consideration to the submissions made by the learned counsel for the parties and the evidence on record has been examined minutely.

9. The case set up by prosecution against appellant during trial rested on following pieces of evidence:‑‑

(a) Testimony of Mir Hassan P.W. the only eye‑witness corroborated by Muhammad Waris P.W.1 the S.‑I/S.H.O. and P.W. Mst. Shahzadi.

(b) Absconsion of appellant for period of 7 years.

(c) Medical evidence.

10. P.W.1, Muhammad Waris, S.‑I./S.H.O. Police Station Sohbatpur, reached the place of incident where the dead body was lying and Mir Hassan son of deceased was present who gave him the account of the series of the facts which resulted in the death of his father. The same was incorporated by him in his Marasla Exh.P/1‑A. In cross‑examination statement of P.W.1, was not questioned regarding his reaching the place of incident and discovering the dead body of Naseer Khan, whereas, P.W.I denied that Mir Hassan, was called from his house and introduced as witness of the incident. However, P.W.1, could not identify Mir Hassan, who was present in the Court.

11. Admittedly the incident took place on 10‑9‑1994 whereas statement of P.W.1 was recorded on 24‑3‑2001 i.e. almost after about 7 years of the incident, failure to identify a person after 7 years in the circumstances by itself cannot suggest that Mir Hassan, was not the same person whom P.W.1 found with the dead body. Besides, defence plea that Mir Hassan, was called subsequently from his house and introduced as witness of the incident if believed then too as per defences own showing P.W.1, is found to have met Mir Hassan, during investigation when he was allegedly called for being introduced as witness but due to lapse of period of seven (7) years he could not identify him. It would be not out of place to mention that Mir Hassan, who appeared as P.W.2 stated his age as 16/17 years which defence did not dispute. Similarly P.W.3 Shahzadi, in her statement stated that at the time of incident the age of Mir Hassan, was 7 years. In any case at the time of incident age of Mir Hassan P.W.2, is found to be not more than 10 years. Therefore, a boy of 10 years if seen after 7 years who admittedly would be a grownup man would be difficult to be identified by a person who is neither related to him nor having arty contact during said period. Hence, failure of P.W.1, to identify Mir Hassan, after 7 years in the stated circumstances does not cast any doubt on his identification and his presence at the scene of occurrence when P.W.1 reached there.

12. Mir Hassan, appeared as P.W.2 and stated that he and his father after taking meal and purchase of household articles, were on their way to home in a Bus from Sohbatpur. When the Bus reached Drighi, the Bus was stopped and the accused/appellant alongwith co‑accused Kehloo, pulled his father from the Bus. Kehloo, caught hold of his father and accused/appellant fired two shots with pistol on his father which resulted in his death. Accused/appellant ran away from the spot. Kehloo, brought the Police and the dead body was shifted to hospital. In cross‑examination P.W.2 remained firm about appellant causing death of his father. The only improvement made by him was ascribing of role to Kehloo, who was alleged to have caught his father when appellant shot him. The said improvement does not effect the alleged role played by appellant in the commission of offence. Besides as already pointed out at the relevant time age of P.W.2 was not more than 10 years, therefore, any omission made by him at that time which too does not effect the roll of appellant cannot be considered to be material improvement casting doubt on the case of prosecution. However, statement of P.W.2 recorded in the Court is silent about the motive/reason which lead to the incident causing death of his father.

13. P.W.3, Shahzadi, widow of Naseer Khan, stated that at the time of incident she was at her house at Goth Khan Nabi Bakhsh, when they received telephonic message regarding murder of her husband Naseer, P.W.3, stated that Mir Hassan, informed her that Relief Fund was received by her husband and accused/appellant was demanding only Rs.50 which was not paid on account of which accused/appellant killed her husband. In cross‑examination P.W.3, denied that Mir Hassan, is dead and Muhammad Bakhsh, has been produced as Mir Hassan. According to P.W.3 at the time of incident age of Mir Hassan, was about 7 years. P.W.3, stated about giving hand of her daughter to accused/appellant against sum of Rs.25,000 who was to live as "Char Damad" but accused failed to fulfil the conditions, however, P.W.3 admitted that accused/appellant despite their demand did not divorce her daughter. P.W.3 also stated about recording her statement at Police Station where she went with her son Mir Hassan, after 3 days of incident. P.W.3, denied‑that accused/appellant has been involved only to compel him to divorce her daughter. P.W.3, admitted that she registered a case of Zina against Nawaz Bhanger, which was subsequently compromised on payment of Rs.20,000. However, she denied that accused/appellant has been involved in order to extract money from him.

14. P.W.3, has corroborated statement of P.W.1 and P.W.2 to the extent that at the time of incident Naseer, was accompanied by Mir Hassan and that the dispute started on amount of Relief Fund. Defence though through cross‑examination of P.Ws. tried to make out a case of false involvement of appellant in the commission of offence on different accounts but demeanour P.W.3 reflected from her statement and cross‑examination is of truthful witness as she did not try to conceal any of the fact i.e, her demand of divorce of her daughter and registering of case of Zina against Nawaz Bhanger. Therefore, there exists no reason to disbelieve P.W.3 regarding her receiving of information through telephone regarding murder of her husband. and information given to her by Mir Hassan, that her husband was killed by accused/appellant as her husband was not ready to pay Rs.50 from the Relief Fund received by him.

15. Statement of P.Ws. 1, 2 and 3 referred above are found to be in conformity with each other regarding causing of death of Naseer Khan, by accused/appellant Bashir Ahmed, by means of pistol. There is no contradiction in their statements as agitated by the defence counsel P. W. 2 Mir Hassan, is the eye‑witness of the incident and his statement has been corroborated by the statement of P. W.1 and P.W.3.

16. The only motive which has come on record is demand of money made by accused from deceased. The F.I.R., P.W.1 and P.W.3 corroborate each other, only contradiction which has come on record is the difference of amount which is ignorable on account of lapse of 7 years between the incident and recording of statements of witnesses. The contention raised by the counsel for appellant regarding introduction of different motives finds no support from record.

17. Although death of deceased Naseer Khan being unnatural and caused by bullet injuries was not disputed by the defence but prosecution produced P.W.5 Dr.Wajid Ali Khoso, who conducted the post‑mortem of deceased Naseer Khan. He produced his report as Exh.P/5‑A with following observation:‑‑

External Injuries : One lacerated punctured wound al‑epigastrium 1 c.m. diameter with inverted margins. Tattooing present (wound of entry).

Internal Injuries:

CNS: NAD.

CHEST: NAD.

ABDOMEN: The bullet entered into the abdominal cavity at epigastrium, ruptured the medial .lob of liver and transverse colon and caused internal bleeding.

BONES AND MUSCLES : NAD.

OPINION : From the post‑mortem of dead body I am in the opinion that the death of Naseer Khan son of Wali Muhammad, is caused due to discharge of a riffled weapon e.g. pistol or revolver. The weapon was discharged in 6" distance (about).

18. The statement of P.W.5 and the report Exh.P/5‑A was not questioned by the defence. The report while confirmed the cause of death also stated that Naseer Khan, was shot from close range about 6".

19. The incident admittedly took place on 10‑9‑1994 whereafter appellant remained absconder till he was arrested on 22‑2‑2001. P.W.8, Jan Muhammad, who was posted at Police Station Sohbatpur, at the relevant time, conducted the investigation. In his statement he stated that accused/appellant was absconder at that time and he was arrested after his transfer. The date of his transfer is stated to be 22‑2‑2000. Statement of P.W.8 to above effect remained unquestioned. P.W.7 Mushtaq Ahmed, who was handed over the investigation after transfer of P.W.8 Jan Muhammad, stated that on 22‑2‑2001 accused Bashir Ahmed, was arrested who was absconding in Crime No.49/94 under section 302, P.P.C, his statement also was not disputed by the defence. Therefore, the fact of absconsion of accused from the day of incident is found to be an admitted fact and require no deliberation, whereas, defence remained mum and no justification or reason for absconsion of accused from 10‑9‑1994 to 22‑2‑2001 was stated.

20. After taking into consideration all the pieces of evidence and the arguments advanced Mr. Amanullah Kanrani, learned counsel for the appellant. The statement of P.W.2 the only eye‑witness of the incident is found to be corroborated by the F.I.R, statement of P.W.1 and P.W.3 while unexplained absconsion of appellant for 7 years is found to be and additional corroborative piece of evidence. The medical certificate also shows that deceased was shot from distance of about 6" which further corroborates the statement of P.W.2 regarding the manner in which his father was shot by the appellant. P.W.2, is a natural witness, his presence with his father is justified, therefore, his being son of deceased does not make him interested to the extent to involve an innocent parson in the murder by letting free the actual culprits. The age of P.W.2 at the time of incident being 10 years does not allow to believe that he could concoct a story. P.W.2, therefore, in such circumstances is found to be a reliable witness and his solitary statement corroborated by independent pieces of evidence as hereinabove mentioned cannot be discarded only because he was son of deceased.

21. The Hon'ble Supreme Court of Pakistan in Riaz Hussain v. The State 2001 SCMR 177 held that there is no force in the contention that conviction could not be awarded on the basis of solitary statement of Mst.Manzooran as it is quality of evidence and not quantity which is to be considered. The conviction can be based on the evidence of a solitary witness .

22. The Hon'ble Division Bench of Peshawar High Court in its judgment Luqman v. The State PLD 2001 Peshawar 140, in case of solitary eye‑witness who was father of deceased, corroborated by medical evidence and absconsion of accused held that:‑‑

"We have carefully considered the arguments of the learned counsel for the appellant and learned State Counsel and have perused the record with their assistance. No doubt it is a case of solitary witness but the testimony of a solitary witness itself is not a demerit or disqualification as can call for its repudiation when otherwise it rings true and inspires confidence. The argument that the eye witness being the father of the deceased is highly interested cannot be relied upon is not tenable both legally and logically in the absence of any defect in its intrinsic probative worth and in the absence of any motive on his part to falsely implicate the appellant. The argument of the learned counsel for the appellant that the medical evidence is in conflict with the ocular testimony as the blackening around the entry wound on the person of the deceased would show that he was fired at from a. close range whereas according to the ocular account and the site plan the deceased was fired at from a distance of four paces would be devoid of any force as the blackening has been held to have been introduced later on through an overwriting in the post‑mortem report by the trial Court and right so, as the overwriting thereon is writ large on the face of it. Apart from this, the abscondence of the appellant in the given circumstances of the case will go a long way to corroborate the prosecution evidence and point to the involvement of the appellant in the crime when the same has not been plausibly explained. Besides this, the defence has not projected even through insinuation about the innocence of the appellant or involvement of some other person in the commission of the crime."

23. The facts and circumstances of the case in hand are found to be similar to the circumstances of case hereinabove referred whereas the view of Hon'ble Supreme Court of Pakistan as per earlier quoted judgment also lead to the conclusion that statement of P.W.2 corroborated by F.I.R, P.W.1. P.W.3, and unexplained absconsion of accused and medical certificate proves the guilt of appellant in the commission of offence. Hence, the trial Court is found to have rightly convicted appellant and he has already been extended leniency by awarding him lesser punishment, though for the same no reason was stated but at this junction we do not find it proper to interfere in the same. Accordingly the conviction and sentence awarded to the appellant is upheld.

24. Appeal being without any substance is dismissed.

N.H.Q./143/Q

Appeal dismissed.